Industry and Enviros Still Polarized on Mining Waste Rule

The US Office of Surface Mining Reclamation and Enforcement (OSM) is trying once again to establish a rule updating its regulation of coal mining waste placement, after waves of criticism led it to pull back on a 2004 proposal. The latest proposal tweaks the previous proposal, and adds an Environmental Impact Statement, which the agency had said in 2004 wasn't necessary.

As with the last attempt, the mining industry is largely in favor of the new rule, and environmental groups are up in arms against it.

The primary focus of the proposed rule is so-called "mountaintop removal" mining, in which peaks and ridges of mountains are blasted and removed to gain access to coal. The process, which has become widely used following technological advances in the past decade or so, generates large volumes of "spoil" that mining companies place in valley bottoms. Permanent, perennial, and ephemeral streams are in those same locations, and are often affected permanently or temporarily by the dumping. The main battle is over interpreting how much disturbance is allowed under the 1977 Surface Mining Control and Reclamation Act, and its 1979 and 1983 modifications.

The type of mining affected by the proposed rule occurs primarily in KY, TN, VA, and WV, though there also are operations in AL, AK, CO, OH, PA, TX, WA, and WY that could be affected.

Court battles over the past decade - with some judges ruling against the current rule and other judges overturning those decisions - have helped prompt OSM to attempt to clarify the rule. The agency's published information says the new rule will provide a predictable set of more stringent regulations; will increase environmental protection; and will neither increase nor decrease mountaintop mining. However, OSM officials refuse to talk about the rule, saying they are concerned that what they say will be distorted in the media and bias public perceptions. They say that all information is available in either the proposed rule, the draft EIS, or an accompanying fact sheet or set of answers to frequently asked questions.

• OSM: Ben Owens, 202-208-2565.
• OSM press release of Aug. 24, 2007.
• OSM fact sheet.
• OSM frequently-asked-questions (FAQ).
• Draft EIS: summary and full statement.

The mining industry says it's generally satisfied that the new rule offers a good balance that will allow economically-feasible coal mining while protecting the environment. The National Mining Association's Luke Popovich, 202-463-2620, says the rule will essentially sanction the status quo, which OSM says has resulted in filling, or approval for filling, of at least 1,700 miles of streams. Popovich acknowledges that the original 1977 rule and its 1979 and 1983 revisions couldn't have anticipated the massive scale of mountaintop removal mining now in use. He says if this type of mining and waste disposal aren't allowed, it would be the end of mining in Appalachia, because other alternatives aren't economically feasible. The NMA says it will soon submit its comments on the rule. Its April 7, 2004, comments on the previous proposal arehere.

Environmental groups are generally saying that the proposed rule will actually reduce environmental protection, since its language would set standards even more subjective than before. Examples of key phrases underpinning the new rule are the requirement that mining companies avoid environmental damage "to the extent possible" through use of the "best technology currently available." Mining companies may be able to avoid these subjective requirements by explaining why they are not possible. Many environmentalists say they would be satisfied if OSM would strictly enforce the current rule.

• Earthjustice: Joan Mulhern, 202-667-4500 x223; release.
• West Virginia Highlands Conservancy: Cindy Rank, 304-924-5802; blog.

The deadline for public comment on the proposed rule and draft EIS is Oct. 23, 2007.